Under what circumstances can a person file suit for getting back possession of immovable property from which he has been dispossessed?

A person wrongfully dispossessed of immovable property may file suit for recovery of possession under the Specific Relief Act, 1963 through two distinct routes — the summary remedy under section 6 and the plenary remedy under section 5 — with the applicable route and its conditions determined principally by the time elapsed since dispossession and the legal basis relied upon. As the Privy Council declared in Midnapur Zamindary Co Ltd v Naresh Narayan Roy, AIR 1924 PC 144, "persons in India are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court". This principle undergirds every circumstance under which a suit for recovery of possession may be maintained.

The Summary Suit Under Section 6: Conditions

Section 6 provides the most immediate remedy. The plaintiff need not prove any title whatsoever — the sole questions are those of possession and wrongful dispossession. For the suit to be maintainable, five conditions must be established, as authoritatively summarised by the courts:

The plaintiff was in settled possession of the immovable property immediately prior to the dispossession. The possession must be juridical — not the possession of a servant, caretaker, or agent (whose possession is in law that of the employer or principal), but one founded on some right or long-standing, open, and uncontested exercise of dominion. As the Supreme Court laid down in Rame Gowda v M Varadappa Naidu, AIR 2004 SC 4609, (2004) 1 SCC 769, "settled possession" must be (i) actual physical possession over a sufficiently long period; (ii) possession to the knowledge, express or implied, of the owner; (iii) such that the true owner has acquiesced to it; and (iv) accompanied by animus possidendi.

2. The dispossession was without the plaintiff's consent. The section does not apply where possession was given up voluntarily — as where a tenant surrenders premises to the landlord for a marriage occasion and the landlord refuses to return them: Sukhjeet Singh v Sirajunnisa, AIR 2001 MP 59. The act of dispossession must be an overt, forcible ouster; mere interference with the enjoyment of rights (such as the collection of tolls or cow dung) does not constitute dispossession within the section: Sona Mia v Prokash Chandra, AIR 1940 Cal 464.
   

3. The dispossession was otherwise than in due course of law. "Due course of law" means the regular, normal process of law — a court decree, an order under section 145 of the Code of Criminal Procedure, 1973, or a valid execution proceeding. Dispossession through a court order, even if erroneous, is in due course of law. Self-help is not. Thus, a landlord who physically evicts a tenant after expiry of the lease — without an eviction order — is liable under the section: Rudrappa v Narasingarao, ILR (1905) 29 Bom 213. Equally, possession seized by a court official acting without authority (e.g., a court officer empowered only to attach property but who delivers possession) is not in due course of law.
   

4. The dispossession is of immovable property. The term immovable property under the General Clauses Act, 1897, section 3(26), includes land, benefits arising out of land, and things attached to the earth or permanently fastened thereto. The property must be physically in existence on the date of the suit; if it has been demolished, section 6 cannot be invoked: Ashok Kumar Chowan v AG Anwar Ali, AIR 2010 Kant 70. There is a conflict of opinion among High Courts on whether incorporeal rights such as a right of fishery or ferry fall within the section, the Calcutta High Court holding they do not, while Bombay and Madras have held otherwise.
   

5. The suit must be filed within six months of the date of dispossession. This is an absolute limitation prescribed by section 6(2)(a) and is not subject to any power of condonation. The Supreme Court in Mohd Mehtab Khan v Khushnuma Ibrahim Khan, AIR 2013 SC 1099, (2013) 9 SCC 221 confirmed that this period is mandatory and its expiry bars the section 6 remedy entirely.
   

Title is Wholly Irrelevant

The defining feature of a section 6 suit is that title is wholly irrelevant. The words of the section — "notwithstanding any other title that may be set up in such suit" — mean that even the true owner who forcibly dispossesses a peaceful possessor will be required to restore possession. As Pollock and Mulla state, in a suit under section 6 "the Court will have to decide the question regarding possession and will have to decide as to who was in possession of the property within 6 months immediately preceding the date of filing of the suit. The sole question before the Court is of possession, and the question of title is not to be gone into".

Who May Sue

Section 6(1), as amended by the Specific Relief (Amendment) Act, 2018, extends the right to sue to three categories of persons:

·       The person directly dispossessed — owner, tenant, licensee with a grant, mortgagee in possession, purchaser in possession under an agreement of sale, or any person with juridical possession.

• Any person through whom he has been in possession — this expressly includes a landlord whose tenant has been forcibly dispossessed. The amendment codifies the Supreme Court's ruling in Sadashiv Shyama Sawant v Anita Anant Sawant, (2010) 3 SCC 385: the dispossession of a tenant is in law the dispossession of the landlord.

• Any person claiming through the dispossessed person — heirs, legal representatives, and persons who derive title from the dispossessed plaintiff.

• Exclusion — Government

No suit under section 6 lies against the Government: section 6(2)(b). This bar is absolute, though writ remedies and suits under other statutes may still be available.

Circumstances Where Section 6 Does Not Apply

Several circumstances defeat the summary remedy, even if the other conditions are met:

·       The plaintiff's possession was merely fugitive, casual, or for a short duration, not amounting to settled possession (Puran Singh v State of Punjab, AIR 1975 SC 1674).

• The plaintiff's possession was that of a servant, watchman, caretaker, or agent — whose possession is in law that of the principal: Maria Margarida Sequeira Fernandes v Erasmo Jack de Sequeira, (2012) 5 SCC 370.

• The plaintiff voluntarily surrendered possession before the defendant took it.

• The dispossession was effected in due course of law, e.g., through court-ordered delivery of possession in execution, or under section 145, CrPC.

• The suit is brought against the Government.

• The suit is filed after six months from the date of dispossession.

• The immovable property no longer exists (has been demolished or destroyed) on the date of the suit.
  

The Plenary Suit Under Section 5: Circumstances and Conditions

When section 6 is unavailable — whether because six months have elapsed, or the plaintiff's dispossession was in due course of law, or the defendant is the Government — the dispossessed person may still file a suit under section 5, which provides the comprehensive plenary remedy.

Under section 5, a suit may be brought in the following circumstances:

• Suit based on title by ownership: The plaintiff proves a valid legal or equitable title entitling him to exclusive possession. Once title is established, the defendant must show a right to remain in possession, failing which a decree follows as a matter of right: Sheriff Iqbal Hussain Ahmad v Kota Venkata Subbamma, AIR 1994 AP 164.

• Suit based on possessory title: The plaintiff proves prior, undisturbed, and settled possession — good against all who cannot show a better title — without having to establish documentary title. The defendant cannot resist such a suit by taking a jus tertii plea (pointing to a superior title in a third person): Somnath Burman v Dr SP Raju, AIR 1970 SC 846, (1969) 3 SCC 129.

• Suit based on prior possession alone (after six months of dispossession): Even where section 6 is barred by limitation, the plaintiff may sue under section 5 on the basis of mere anterior possession within twelve years of dispossession under Article 64 of the Schedule to the Limitation Act, 1963. In such a suit, the plaintiff need not prove title, but if the defendant sets up title, the plaintiff must establish a better right or fail: Nair Service Society v KC Alexander, AIR 1968 SC 1165.

• Suit based on title (within twelve years from the date the defendant's possession became adverse): Governed by Article 65, Limitation Act, 1963. In this suit, the defendant may raise all defences including superior title and adverse possession.
  

Overlap, Election, and the Availability of Both Remedies

The remedies under sections 5 and 6 are not mutually exclusive. As the Supreme Court held in Nair Service Society v KC Alexander, AIR 1968 SC 1165, section 5 does not limit the kinds of suit but merely directs that the procedure of the Code of Civil Procedure be followed after the summary remedy is unavailable. A dispossessed person within six months has the election to proceed under section 6 (summary, no title inquiry) or to file a full suit under section 5 (regular procedure, title may be in issue). However, if a person loses in a title suit under section 5, she cannot thereafter invoke section 6 for the same property — the right of resort to section 6 cannot be used to frustrate a concluded adjudication of title.

Special Categories of Plaintiffs

The law extends the protection of section 6 to a wide range of persons whose possession is juridical and not merely permissive:

·       A tenant dispossessed by his own landlord or by a trespasser, even after the lease has expired and the possession is no longer "lawful", retains juridical possession: KK Verma v Naraindas C Malkani, AIR 1954 Bom 358, approved in Lallu Yeshwant Singh v Rao Jagdish Singh, AIR 1968 SC 620.

• A mortgagee in possession dispossessed by the mortgagor or a stranger.

• A licensee with a grant who has been put in possession.

• A co-owner in exclusive possession dispossessed by another co-owner or by a trespasser.

• A purchaser of a flat who has been given the keys and carried out construction — sufficient possession to maintain a section 6 suit against the developer who forcibly re-enters: Sudhir Jaggi v Sunil Akash Sinha Choudhury, AIR 2005 SC 1243, (2004) 7 SCC 515.

• A person whose possession has been through adverse possession that has not yet ripened into prescriptive title — entitled to file a possessory suit under Article 64 of the Limitation Act: Ravinder Kaur Grewal v Manjit Kaur, (2019) 8 SCC 729.
  

Current Position

The settled law is that any person in juridical, settled possession of immovable property who is dispossessed without his consent and otherwise than in due course of law may file a suit under section 6 within six months — without the need to establish any title whatsoever — and obtain immediate restoration of possession. Where the six-month window has closed or the dispossession was through legal process, the dispossessed person retains the right to sue under section 5 within twelve years, with title and possessory rights being fully adjudicated. No person — not even the true owner — is permitted to dispossess another by force; the only lawful mode of recovering possession is through a court of competent jurisdiction.